LQM PTY LTD (Migration)

[2023] AATA 4726

LQM PTY LTD (Migration) [2023] AATA 4726 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LQM PTY LTD

REPRESENTATIVE:  Ms To Quyen (Tina) Tran (MARN: 1466142)

CASE NUMBER:  2003546

HOME AFFAIRS REFERENCE(S):          BCC2019/2238420

MEMBER:Terrence Baxter

DATE:5 December 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 December 2023 at 9:20am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Contract Administrator – occupation requirements – tasks performed by the nominee – alignment with the ANZSCO – employment in the position for at least 2 years – PAYG payment summaries – date of issue – name discrepancy – quality of the representative’s submissions – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, LQM Pty Ltd, applied for approval on 24 April 2019. The applicant nominated Ms Thanh Dinh (the nominee) in the position of Contract Administrator. The applicant operates a wholesale and retail business in the Perth, Western Australia region with its main outlet at Malaga and a second store at Armadale. The applicant has employed the nominee since approximately 2009 and in the position of Contract Administrator since 2015.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5): reg 5.19(4)(e).

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(f) of the Regulations because the delegate found that the applicant had not established that the nominee had been employed in the nominated position on a full-time basis for a total period of at least two years during the period of three years immediately before the nomination application was made.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 February 2020.

7. Ms Diana Lam, the Accounts Manager and Office Manager of the applicant, appeared before the Tribunal by video conference on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee by video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by its registered migration agent Ms To Quyen (Tina) Tran. The representative attended the Tribunal hearing by video conference.

10. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence provided prior to the hearing

12. The applicant provided to the Department of Home Affairs (the Department) the following documents:

    a.The nomination application.

    b.An employment agreement dated 22 March 2019.

    c.Evidence of the applicant’s occupancy of its business premises.

    d.An ASIC company summary in respect of the applicant.

    e.Various payslips of the nominee.

    f.Submissions from the applicant dated 15 April 2019 and 13 January 2020.

    g.Business activity statements for the period from July 2018 to March 2019.

    h.A tax return for the 2018 financial year.

    i.Various invoices issued to the applicant.

    j.Evidence of training expenditure incurred by the applicant.

    k.A submission from the representative dated 10 September 2019.

    l.A resume of the nominee.

    m.Evidence of the amount of paid and unpaid leave taken by the nominee.

    n.PAYG payment summaries and income statements of the nominee for the 2016 to 2019 financial years.

13. The applicant provided to the Tribunal the following documents in addition to documents previously provided to the Department:

    a.A copy of the delegate’s decision.

    b.A submission from the nominee’s accountant dated 17 February 2020.

    c.A statutory declaration of the nominee made on 24 February 2020.

    d.A current ASIC company summary in respect of the applicant.

    e.Submissions from the applicant’s accountant dated 6 February 2020 and 13 March 2023.

    f.The nominee’s income tax assessments for the 2015 to 2019 financial years.

    g.A business card of the nominee.

    h.Tax returns of the nominee for the 2021 and 2022 financial years.

    i.Various business invoices issued to the applicant.

    j.Income statements of the nominee for the 2021 to 2023 financial years.

    k.The applicant’s tax return for the 2022 financial year.

    l.Recent payslips of the nominee.

    m.The applicant’s Australian Taxation Office (ATO) income tax account for the period from 1 July 2021 to 12 September 2023.

    n.The applicant’s ATO integrated client account for the period from 12 September 2021 to 12 September 2023.

    Evidence of the hearing regarding the applicant’s operations

14. Ms Lam stated that the applicant’s business included both wholesale and retail components. The applicant supplies predominantly fruit, vegetables and groceries. The retail stores are open seven days per week for 11 hours per day and the wholesale business operates five days per week for eight hours per day.

15. Ms Lam gave evidence of the tasks performed by the nominee as Contract Administrator. The nominee also provided evidence of the tasks performed by her in the position.

    Evidence provided after the hearing

16. After the hearing, the applicant provided to the Tribunal the following documents:

    a.An updated employment agreement dated 14 September 2023.

    b.Current market salary evidence.

    c.The applicant’s financial statements for the 2021 and 2022 financial years.

    d.The applicant’s tax returns for the 2021 and 2022 financial years.

    e.Business activity statements for the period from July 2020 to June 2022.

    f.Recent payslips of the nominee.

    g.Various contracts relating to the applicant’s business.

    h.A submission from the applicant dated 28 September 2023.

    i.The applicant’s determination of the annual market salary rate for the occupation accompanied by relevant evidence.

    Application requirements – reg 5.19(4)(a)

17. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position;

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

18. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

19. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

20. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.

21. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

22. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

23. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·has contravened a law of the Commonwealth, a State or a Territory; or

    ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or

    ·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law; or

    ·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)); or

    ·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

24. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

    ·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances; or

    ·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member); or

    ·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or

    ·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)); or

    ·one is or was able to exercise influence or control over the other; or

    ·a third person is or was able to exercise influence or control over the both of them.

    Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

25. At the hearing, the Tribunal advised Ms Lam that the records of the Department included a Client of Interest note recording that an allegation had been received by the Department in March 2020 regarding staff exploitation. Ms Lam stated that she had not previously received notice of the allegation and that the applicant had not been contacted by the Department to investigate the allegation.

26. The Tribunal notes that the allegation was made over three years ago and there is no evidence the allegation was investigated by the Department or that it has been substantiated in any way. The Tribunal is satisfied that the information does not amount to adverse information as defined in the Regulations. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

27. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licensing, registration and memberships – reg 5.19(4)(c)

28. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

29. In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Contract Administrator, and the date of application is 24 April 2019.

30. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Contract Administrator.

31. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws − reg 5.19(4)(d)

32. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

33. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

34. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

35. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

36. The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment.

37. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Visa held by identified person at time of application − reg 5.19(5)(a)

38. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a Subclass 457 visa; or

    ·a Subclass 482 visa; or

    ·if the last substantive visa held was one of the above two visa types, a bridging visa granted on the basis they are an applicant for one of those visa types, or for a Subclass 186 or 187 visa.

39. The nomination application was made on 24 April 2019. Records of the Department confirm that the nominee held a Subclass 457 visa, which was granted on 8 May 2015 and was in effect until 8 May 2019. Accordingly, the Tribunal is satisfied that the nominee held the relevant visa on the date of the application.

40. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

    Occupation requirements – regs 5.19(5)(b) and (d)

41. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b) and (d). The occupation identified in this application is Contract Administrator.

42. Firstly, the occupation must be listed in the Australian and New Zealand Standard Classification of Occupations (the ANZSCO) and have the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

43. Secondly, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in the ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

44. The occupation of Contract Administrator is listed in the ANZSCO and has the same four-digit ANZSCO occupation unit group code (1492) as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted.

45. The Tribunal spoke at length with Ms Lam and the nominee at the hearing regarding the tasks performed by the nominee and whether those tasks aligned with the tasks of the occupation as specified in the ANZSCO. The Tribunal sought evidence that the nominee’s tasks did align with the tasks of the nominated occupation and not with those of a lower-skilled occupation such as Accounts Clerk (occupation code 551111).

46. The tasks of occupations in unit group 5111 of the ANZSCO (which includes the occupation of Contract Administrator) include:

    odeveloping, reviewing and negotiating variations to contracts, programs, projects and services

    oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

    omanaging paperwork associated with contracts, programs, projects and services provided

    oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

    oadvising senior management on matters requiring attention and implementing their decisions

    ooverseeing work by contractors and reporting on variations to work orders

    opreparing and reviewing submissions and reports concerning the organisation's activities

    ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes

    oreviewing and arranging new office accommodation.

1. The evidence available at the hearing relating to this requirement was limited to a number of invoices issued by one particular supplier to the applicant. After the hearing, the applicant provided a number of contracts from various suppliers for the delivery of goods to an importer representing the applicant and a submission from the applicant regarding the importer’s role in those transactions. The applicant’s submission also recorded the nominee’s role in the negotiations of the terms of those contracts and her supervision of the performance of the contracts.

2. Ms Lam stated at the hearing that the nominee negotiated the terms of contracts with overseas and local suppliers and that her role involved supervision of between 10 and 20 contracts per week. She said that the nominee negotiated the price to be paid for the product, the timing of shipments and the terms of payment by the applicant. She said that, in the case of a supplier who had not previously supplied goods to the applicant, the nominee was required to spend additional time with that contract but agreed that less time was required for contracts with regular suppliers.

3. Ms Lam said that the nominee reported to Mr Quang Lam, the sole Director of the applicant, on a regular basis. She said that Mr Lam was not a fluent speaker of the English language and that the nominee interpreted relevant contract terms to him.

4. The nominee, who was not present in the hearing when the evidence of Ms Lam was given, gave evidence of the tasks performed by her, that evidence being consistent with that of Ms Lam. She described how she conducted market research regarding the quality and pricing of goods being purchased, negotiated terms of contracts with suppliers and checked the quality of supplies after delivery. She said that if there was a problem with the quality of goods supplied, it was her responsibility to negotiate appropriate credits with the supplier.

5. Having regard to all the evidence, the Tribunal is satisfied that there is no information known to Immigration that the nominee is not genuinely performing the tasks of the occupation of Contract Administrator.

6. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b) and (d) are met.

   Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

7. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

8. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least two years in the period of three years immediately before the nomination application was made:

   ·a Subclass 457 visa; or

   ·a Subclass 482 visa.

9. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least two years during the period of three years immediately before the nomination application was made. The three years of employment cannot include any periods of unpaid leave.

10. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least two years (not including any periods of unpaid leave) during the periods of three years immediately before the nomination application was made.

11. As stated previously, the nominee was granted a Subclass 457 visa on 8 May 2015, which was in effect until 8 May 2019. The nomination application was made on 24 April 2019. Accordingly, the requirement in reg 5.19(5)(e) is met.

12. Based on the information provided to the Department, the delegate was not satisfied that the requirement in reg 5.19(5)(f) was met. Although PAYG payment summaries and an income statement of the nominee for the 2016 to 2019 financial years were provided to the Department, the delegate noted that those documents were created on 8 January 2020. The delegate noted that employers were generally expected to issue these documents to employees within a certain timeframe and that no explanation had been provided why the documents were created on 8 January 2020. The delegate also noted that the name of the employee described in the PAYG payment summaries (Thanh Thao Duye Dinh) did not correspond exactly with the name of the nominee in the nomination application (Thanh Thao Duyen Dinh). The delegate placed little weight on those documents.

13. The applicant’s accountant has provided an explanation for the PAYG payment summaries all being dated 8 January 2020. The accountant confirmed that PAYG payment summaries had been issued at the appropriate times for the 2016 to 2018 financial years and that the documents had been reprinted on 8 January 2020. The nominee provided an explanation for the discrepancy between her name on the PAYG payment summaries and her correct legal name.

14. The applicant has provided evidence that the nominee was employed on a full-time basis from at least 1 July 2015 until the present date. The Tribunal is satisfied that the nominee was employed in the position of Contract Administrator, being the position in relation to which her Subclass 457 visa was granted, for at least two years during the period of three years immediately before the nomination application was made.

15. The nominee’s Subclass 457 visa was not granted in relation to an occupation specified in an instrument under reg 2.72(13). Accordingly, reg 5.19(5)(g) does not apply.

16. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

    Status of the nominator – reg 5.19(5)(h)

17. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor or party to a work agreement who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

18. The records of the Department confirm that the applicant was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.

19. The applicant produced ASIC evidence of its registration. The applicant also produced financial reports and tax returns for the 2021 and 2022 financial years. The financial reports disclose that the applicant received total income of $11,004,290 and $13,824,721 in the 2021 and 2022 financial years respectively. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a wholesale and retail business.

20. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

    Genuine need for employment – regs 5.19(5)(j) and (k)

21. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

22. The occupation of Contract Administrator is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with regs 5.19(5)(j) and (k).

23. Regulation 5.19(5)(j) requires that the application identifies a need for the nominator to employ the nominee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(5)(j) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(5)(j) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(5)(j) and reg 5.19(5)(k), which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(5)(l), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(5)(j), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(5)(k), the Tribunal considers that this issue is more appropriately considered under reg 5.19(5)(k).

    [1] Dictionary.com (accessed October 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

24. The Tribunal considers that reg 5.19(5)(j) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Contract Administrator and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Contract Administrator under the applicant’s direct control such that reg 5.19(5)(j) is met.

25. Regulation 5.19(5)(k) requires that there is a genuine need for the nominee to be employed in the position under the direct control of the applicant. The Tribunal has referred previously in these Reasons to the evidence provided prior to the hearing and at the hearing regarding the tasks performed by the nominee in the position.

26. Ms Lam stated at the hearing that, prior to 2015, the applicant had not previously been in the business of importing goods and it began importing after the position was created. She said that she personally, as Accounts Manager and Office Manager, could not fill the role herself because her Vietnamese language skills were limited and that she lacked the required skills to negotiate with suppliers, particularly those from Vietnam.

27. The Tribunal notes that the nominee has been employed on a full-time basis in the position since 2015. The Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Contract Administrator under the direct control of the applicant.

28. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

    Future employment – regs 5.19(5)(l), (m), (n)

29. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

30. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least two years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

31. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

32. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    Full-time employment for two years

33. As previously recorded in these reasons, the occupation of Contract Administrator is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with reg 5.19(5)(l).

34. The employment contract dated 14 September 2023 provides that the nominee is to work full-time for 38 hours per week. The document provides that the contract is to commence on 14 September 2023 and that the employment is for a minimum of four years. The nominee is to be employed in the position of Contract Administrator. The Tribunal finds that it is the intention of the applicant and the nominee that the nominee will be employed full-time for at least two years.

35. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

36. The base salary payable to the nominee under the employment contract is $75,000 per annum.

37. The applicant is in a sound financial position. It recorded profits of $56,608 and $57,127 in the 2021 and 2022 financial years respectively. The applicant paid a salary of $60,450 to the nominee in each of those years. According to the applicant’s 2022 balance sheet, its assets included cash and equivalents exceeding $400,000 and the applicant’s assets exceeded its liabilities by $580,282.

38. Although the salary payable to the nominee under the most recent employment contract exceeds the salaries paid in previous years, the Tribunal is satisfied that the applicant has the financial capacity to meet its employment obligations to the nominee for at least two years. Accordingly, the Tribunal finds that the nominee will be employed on a full-time basis in the position for at least two years.

    Terms and conditions of employment not to include an express exclusion of the possibility of extension

39. The recent employment contract specifically provides that the nominee’s employment is for a minimum of four years. The contract does not exclude the possibility of extension of that term.

    The applicant’s capacity to employ the nominee for at least two years and to pay the annual market salary rate for the occupation

40. As is recorded later in these Reasons, the applicant has determined the annual market salary rate at $75,000, which is equivalent to the base salary payable to the nominee. The Tribunal has found that the applicant has the financial capacity to employ the nominee for at least two years and to pay her that salary of $75,000 per annum. It therefore follows that the Tribunal is satisfied that the applicant has the financial capacity to pay the same annual market salary rate for that period of two years.

41. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay her at least the annual market salary rate for the occupation in each of those two years.

42. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.

    Annual earnings – reg 5.19(5)(o)

43. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03;

    ·the annual market salary rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the instrument, unless the annual market salary rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the annual market salary rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

44. The nominee’s annual earnings will be $75,000. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

    Regulation 2.72(15)(c) – has the applicant determined the annual market salary rate for the occupation in accordance with the instrument?

45. The applicant does not have an Australian worker performing equivalent work to that to be performed by the nominee. The instrument provides that, in these circumstances, where there is no Fair Work instrument, State industrial instrument or transitional instrument applicable to the nominated occupation, the annual market salary rate is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. The applicant has submitted that there is no award applicable to the nominated occupation. The Tribunal accepts that submission. ‘Relevant information’ is defined in the instrument as including job advertisements from a national recruitment website or remuneration surveys generated across relevant industry by a reputable organisation or body.

46. The applicant has determined the annual market salary rate at $75,000.

47. The applicant provided evidence from the platform PayScale that the base salary payable to a Contract Administrator in Perth ranges between $59,958 and $114,030 per annum. The applicant has also provided job advertisements for the occupation of Contract Administrator on the Indeed, SEEK and Workforce Australia sites with advertised salaries ranging from $60,000-$85,000. The Tribunal is satisfied that the applicant has determined the annual market salary rate in accordance with the instrument.

1. For these reasons the requirements of reg 2.72(15)(c) are met.

   Regulation 2.72(15)(d) – is the annual market salary rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?

2. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The annual market salary rate of $75,000 as determined by the applicant in accordance with the instrument exceeds the TSMIT.

3. For these reasons the requirements of reg 2.72(15)(d) are met.

   Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the annual market salary rate for the occupation as determined?

4. The nominee’s annual earnings will be $75,000. These annual earnings are equal to and not less than the annual market salary rate of $75,000 as determined by the applicant.

5. For these reasons the requirements of reg 2.72(15)(e) are met.

   Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?

6. The nominee’s annual earnings, excluding any non-monetary benefits, of $75,000 exceed the TSMIT of $53,900.

100.   For these reasons the requirements of reg 2.72(15)(f) are met.

Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?

101.   The applicant provided evidence that the annual market salary rate is in accordance with relevant information as defined in the instrument. There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.

102.   For these reasons the requirements of reg 2.72(15)(g) are met.

103. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

No information to indicate less favourable employment conditions – reg 5.19(5)(p)

104.   Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

105.   The employment contract includes provisions regarding entitlements for annual leave, paid personal/carer’s leave, unpaid carer’s leave and compassionate leave. Those provisions are consistent with the National Employment Standards. The nominee is entitled to community service leave, parental leave and long service leave in accordance with applicable legislation and the applicant is required to make superannuation contributions on behalf of the nominee in accordance with government regulations.

106.   There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.

107. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

108.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least two years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least two years and pay them at least the annual market salary rate.

109.   The Tribunal has set out in these Reasons the Tribunal’s consideration of the information provided by the applicant for the purposes of regs 5.19(k) to (n). The Tribunal finds that the applicant has provided the information required by the Minister for the purposes of those Regulations.

110. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.

111. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

A note on the quality of the representative’s submissions to the Tribunal

112.   The Tribunal records that several submissions made by the representative in writing and at the hearing have been inaccurate and, consequently, unhelpful. Particulars of those submissions are as follows:

a.In her submission dated 13 July 2023, the representative stated that the applicant operates six shops with an annual turnover exceeding $22 million per year. Ms Lam stated that the applicant operates only two stores, and the financial statements record a total income of $11,004,290 and $13,824,721 in the 2021 and 2022 financial years respectively.

b.At the hearing, the Tribunal advised Ms Lam that the applicant had failed to provide recent financial statements to the Tribunal. She stated that the 2021 and 2022 financial statements had been provided to the representative, who claimed that the documents had been uploaded to the Tribunal. The representative was unable at the hearing to provide details of the date on which the documents were uploaded. The applicant’s 2021 and 2022 financial statements were provided to the Tribunal after the hearing.

c.Similarly, the Tribunal advised Ms Lam at the hearing that no contracts had been submitted to the Tribunal as evidence of the tasks performed by the nominee in the position. (The evidence provided was limited to several invoices from one supplier.) Ms Lam stated that relevant contracts had been provided to the representative, who claimed that extracts from the contracts had been uploaded to the Tribunal. Again, the representative was unable to provide details of the date on which those documents were uploaded. Several contracts were provided to the Tribunal after the hearing.

113.   These issues have been resolved by evidence provided by Ms Lam at the hearing and documents submitted by the applicant after the hearing. However, it is not helpful for the Tribunal to receive inaccurate submissions from a representative as has occurred in this matter.

DECISION

114.   The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Terrence Baxter
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)either:

(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa; or

(iii) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i) or (ii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii), a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 3 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 2 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa;

(ii)a Subclass 482 (Temporary Skill Shortage) visa;

(f)unless paragraph (g) applies—during the period of 3 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 2 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 3 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 2 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor, or the party to a work agreement, who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).